State v. Otte

• Decision Date: 21 February 1996
• Docket Number: No. 94-2622,94-2622
• Citation: 74 Ohio St.3d 555,660 N.E.2d 711
• Parties: The STATE of Ohio, Appellee, v. OTTE, Appellant.
• Court: Ohio Supreme Court

Page 555

74 Ohio St.3d 555

660 N.E.2d 711

The STATE of Ohio, Appellee, v. OTTE, Appellant.

No. 94-2622.

Supreme Court of Ohio.

Submitted Oct. 11, 1995.

Decided Feb. 21, 1996.

Gary Wayne Otte ("Otte") appeals from his convictions for aggravated murder, aggravated robbery and aggravated burglary and his death sentence.

On February 11, 1992, Otte stole his grandfather's red 1962 Chevrolet Impala and .22 revolver and left Terre Haute, Indiana. He also stole two credit cards belonging to his uncle and aunt. Otte arrived in Parma, Ohio, the next day and tried to use the stolen cards in local stores, but they were confiscated.

Otte next drove to see his friend Mike Carroll ("Carroll"). Carroll lived with his fiancee and Jerry "J.J." Cline ("J.J.") in the Pleasant Lake apartment complex in Parma.

After that Otte drove to Gypsy and Rob's, a Cleveland bar, where he found J.J. Otte asked J.J. "if he was still robbing people." J.J. said he planned to "hit" two people at Pleasant Lake. One was a woman in her thirties with a Visa gold card; she lived alone "one building over" from J.J. and Carroll. The other was "an old man that lives diagonally from [Carroll's] apartment that is a drunk and has lots of money."

That evening, Otte returned to Pleasant Lake alone. He went to Carroll's apartment, but nobody was home. He then knocked on the door of Mary Ann Campangna ("Campangna"), who lived next to Carroll and across the hall from Robert Wasikowski. Otte claimed his car had overheated, said he was looking for Carroll, and asked for oil. Campangna told him she didn't have any, and Otte left.

Otte saw Wasikowski drive into the parking lot and thought that "that was the man" J.J. had described. Otte came out and asked Wasikowski for some oil, telling him the same story about his car overheating. As they spoke, Otte noticed that Wasikowski had been drinking. Wasikowski drove Otte to a gas station to buy oil.

When they returned, Otte asked to use Wasikowski's phone; after some hesitation, Wasikowski agreed. Otte followed Wasikowski into his apartment. Looking through her peephole, Campangna found this "very strange," so she continued to watch Wasikowski's door. Six or seven minutes later, Campangna heard "a very loud crack, cracking sound."

Inside the apartment, Otte pretended to make a phone call, then "tried to stall for time." Finally, Wasikowski asked Otte to leave. Otte went to the door, opened it, then slammed it shut and drew a gun. Wasikowski offered Otte $10 from his pocket. Otte pulled the trigger anyway, but the gun wouldn't fire. Wasikowski asked, "[I]t isn't loaded, is it[?]" Otte then fired the gun at Wasikowski's head. This time, it went off. Wasikowski fell to the floor, gasping and begging for help. Otte found this "the most horrible sight that I have ever seen"; nonetheless, he turned up the volume on the TV and went through Wasikowski's pants pocket, took out his wallet and took his cash, about $413. Otte searched for more money, but found only some fifty-cent pieces in the bedroom. He considered shooting himself, "but something told me not to," so he stole the fifty-cent pieces and left through the sliding glass patio door.

Otte then returned to Gypsy and Rob's, where he paid an $80 debt, played pool, drank, and took drugs. At 2:30 a.m., he left the bar, but continued to "party" until 10:00 or 10:30 a.m., when he checked into a hotel and slept until 5:00 p.m.

When Wasikowski failed to report for work on February 13, his employer called the Parma police. An officer entered the apartment and found Wasikowski dead. Robert Challener, the chief deputy county coroner, later performed an autopsy. He found that Wasikowski died from a gunshot to the head fired from less than two feet away.

Meanwhile, Parma police investigated the murder. Capt. Joseph Bistricky ("Bistricky") interviewed Mary Ann Campangna, who described the man she had seen as "a white male, early 20's, six feet, thin to medium build, with blondish-brown hair, and a mustache." She suggested that Mike Carroll might know him.

Around 1:30 p.m., Bistricky interviewed Carroll, who said he knew the person Campangna had seen; his name was Gary, he was from Indiana, and he was driving his grandfather's car, a red 1962 Impala in good condition. Carroll's description of "Gary" matched Campangna's. Carroll promised to call police if he found out more about Gary's identity or location. Later that day Carroll told the police Gary would be at Gypsy and Rob's around 7:30 p.m.

On the evening of February 13, Otte went back to Pleasant Lake to rob Sharon Kostura. Otte knocked on her door; when she answered, he drew a .22 revolver and shoved his way in. He closed and locked the door. Kostura screamed and Otte shot her in the head. He stole about $45 from her purse, took her car keys and checkbook, and left through the patio door. Police later found Otte's fingerprint on that door.

After dinner, Otte returned to Gypsy and Rob's. He left with Carroll, J.J., and someone known as "Buster." They "smoked dope" in the Impala, then visited someone called "Patty." After leaving Patty's house, Otte dropped off J.J. and Buster near the bar.

Otte then drove past several police officers near Gypsy and Rob's. Because Carroll had told Capt. Bistricky that Otte would be at the bar that night, the officers were waiting for Otte. They pulled him over and ordered him to shut off the engine and throw out the keys. Carroll told the officers, "The guns are in the trunk." Officers opened the trunk and found a .22 caliber revolver and a .25 caliber semi-automatic pistol. The officers began an inventory search of the car but because of bad weather and a gathering crowd, Bistricky ordered the car towed, and the search was completed at the police garage.

In the glove compartment, police found Kostura's checkbook, a set of Hyundai car keys, and a box of .22 caliber live shells. In the passenger compartment, they found ammunition for the .25 caliber gun and a pillow with a red stain. A detective documented the items found on an inventory form.

Because Kostura had not reported her checkbook stolen, officers went to her apartment, where they found her still alive. Kostura was taken to the hospital and lived eight days, until February 21. Dr. Challener found that the gunshot wound to her head killed her.

Det. John Bomba interrogated Otte within an hour of his arrest on February 13. Otte denied going to the Pleasant Lake Apartments on February 12 or 13. He claimed he had no idea how Kostura's checkbook got into the car and "never even saw the guns until the police said they were in the trunk."

On the afternoon of February 14, Det. Robert DeSimone interrogated Otte. Otte confessed to shooting and robbing Wasikowski and Kostura. On February 16, Otte signed a confession. On February 20, Otte asked to speak with DeSimone; he corrected part of his February 16 statement and answered questions.

Otte was indicted for aggravated murder under both R.C. 2903.01(A) and 2903.01(B) as to each victim (Counts 1, 2, 6, and 7). Each count carried a felony-murder specification, R.C. 2929.04(A)(7); the two counts involving Kostura's murder also carried a multiple murder specification, R.C. 2929.04(A)(5). Otte was also charged with two counts each of aggravated burglary, kidnapping, and aggravated robbery (Counts 3 through 5, 10 through 12). Counts 1 through 5 and 8 through 12 all carried a firearm specification. Counts 6 and 7 (receiving stolen property) were later dismissed.

A three-judge panel acquitted Otte of kidnapping (Counts 4 and 7) and convicted him of all other counts and specifications. The panel sentenced Otte to death. The court of appeals affirmed.

This cause is now before the court upon an appeal as of right.

Stephanie Tubbs Jones, Cuyahoga County Prosecuting Attorney, and Karen L. Johnson, Assistant Prosecuting Attorney, for appellee.

Zukerman & Associates and Larry W. Zukerman, Cleveland, for appellant.

COOK, Justice.

We have reviewed Otte's seven propositions of law, independently weighed the aggravating circumstances against the mitigating factors and evaluated the proportionality and appropriateness of the death penalty. For the following reasons, we affirm the judgment of the court of appeals and uphold the convictions and death sentence.

Proposition of Law One--Car Search

In his first proposition of law, Otte contends that the trial court should have suppressed the evidence (guns, ammunition, pillow with red stain, and checkbook) found in the police search of the 1962 Impala. Otte lacks standing to challenge the search of the Impala because he admitted that he had stolen the car from his grandfather. A car thief has no legitimate expectation of privacy in a stolen car and therefore lacks standing to challenge its search. Rakas v. Illinois (1978), 439 U.S. 128, 134, 99 S.Ct. 421, 425, 58 L.Ed.2d 387, 395.

Otte does, however, have standing to argue that the items in the car should have been suppressed as "fruits of the poisonous tree" because the police lacked probable cause to arrest him.

An arrest without a warrant is constitutionally invalid unless the arresting officer had probable cause to make the arrest at that time. State v. Timson (1974), 38 Ohio St.2d 122, 67 O.O.2d 140, 311 N.E.2d 16, paragraph one of the syllabus. Probable cause exists when the arresting officer has sufficient information from a reasonably trustworthy source to warrant a prudent person in believing that the suspect has committed or was committing the offense. Id., citing State v. Fultz (1968), 13 Ohio St.2d 79, 42 O.O.2d 259, 234 N.E.2d 593.

Contrary to Otte's assertion, there was probable cause to arrest in this case. The police knew that Mary Ann Campangna had seen a stranger enter Wasikowski's apartment on February 12. She described him and sent police to Mike Carroll for further information. She also told them that she heard a loud sound, that she never saw him leave the apartment,...